You are on page 1of 48

No.

19-1636

In the
United States Court of Appeals
for the Third Circuit

UNITED STATES OF AMERICA,

Appellee,

v.

RAPHAEL HUNT-IRVING,

Appellant.

Appeal from the United States District Court


for the Eastern District of Pennsylvania
District Court Criminal Action No. 14-520-5

BRIEF OF AMICI CURIAE FIREARMS POLICY COALITION,


FIREARMS POLICY FOUNDATION, FIREARMS OWNERS
AGAINST CRIME, MADISON SOCIETY FOUNDATION, AND
SECOND AMENDMENT FOUNDATION IN SUPPORT OF
APPELLANT AND REVERSAL

Joseph G.S. Greenlee


Counsel of Record
Firearms Policy Coalition
1215 K Street, 17th Floor
Sacramento, CA 95814
(916) 378-5785
jgr@fpchq.org
CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Amici Curiae

make the following statements:

Firearms Policy Coalition, Inc. has no parent corporation, nor is

there any publicly held corporation that owns more than 10% of its stock.

Firearms Policy Foundation has no parent corporation, nor is

there any publicly held corporation that owns more than 10% of its stock.

Firearms Owners Against Crime has no parent corporation, nor is

there any publicly held corporation that owns more than 10% of its stock.

Madison Society Foundation, Inc. has no parent corporation, nor

is there any publicly held corporation that owns more than 10% of its

stock.

Second Amendment Foundation has no parent corporation, nor is

there any publicly held corporation that owns more than 10% of its stock.

/s/ Joseph G.S. Greenlee


Joseph G.S. Greenlee
Counsel for Amici Curiae

i
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ............................................ i
TABLE OF AUTHORITIES ..................................................................... iv
STATEMENT OF AMICI CURIAE .......................................................... 1
CONSENT TO FILE ................................................................................. 2
SUMMARY OF ARGUMENT ................................................................... 3
ARGUMENT ............................................................................................. 4
I. For “presumptively lawful” regulations, this Court determines
whether the historical justifications underlying the statute
support a permanent prohibition on the challenger. ..................... 4
II. The historical justification for firearm prohibitions on felons is
the tradition of disarming dangerous persons, which Mr. Hunt-
Irving is not. .................................................................................... 5
A. In English tradition, arms prohibitions applied to disaffected
and other dangerous persons. ..................................................... 6
B. In colonial America, arms prohibitions applied to disaffected
and other dangerous persons. ................................................... 10
C. Influential proposals at ratifying conventions called for
disarming dangerous persons while protecting the right of all
peaceable persons. ..................................................................... 15
D. Prohibited persons could have their arms rights restored in the
founding era. .............................................................................. 19
E. Nineteenth-century bans applied to slaves and freedmen, while
lesser restrictions focused on disaffected and dangerous
persons. ...................................................................................... 20
F. Most early twentieth-century bans applied to non-citizens, who
were blamed for rising crime and social unrest. ....................... 24
G. Early twentieth-century prohibitions on Americans applied to
only violent criminals—the few laws that applied to non-violent
criminals did not restrict long gun ownership. ......................... 26
H. The historical tradition of disarming dangerous persons
provides no justification for disarming Mr. Hunt-Irving.......... 29

ii
III. There is no historical justification for disarming “unvirtuous”
citizens. .......................................................................................... 30
CONCLUSION ........................................................................................ 34
CERTIFICATE OF COMPLIANCE ........................................................ 36
CERTIFICATE OF SERVICE................................................................. 37

iii
TABLE OF AUTHORITIES

Cases

Binderup v. Attorney Gen. United States of Am.,


836 F.3d 336 (3d Cir. 2016) ......................................................... passim

District of Columbia v. Heller,


554 U.S. 570 (2008) ...................................................................... passim

McDonald v. City of Chicago,


561 U.S. 742 (2010) ................................................................................ 4

Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms &
Explosives,
700 F.3d 185 (5th Cir. 2012) ................................................................ 15

Parman v. Lemmon,
244 P. 227 (Kan. 1925) ......................................................................... 23

Parman v. Lemmon,
244 P. 232 (Kan. 1926) ......................................................................... 23

State v. Hogan,
63 Ohio St. 202 (1900).......................................................................... 22

United States v. Barton,


633 F.3d 168 (3d Cir. 2011) ............................................................. 5, 18

United States v. Bena,


664 F.3d 1180 (8th Cir. 2011) .......................................................... 4, 33

United States v. Booker,


644 F.3d 12 (1st Cir. 2011) .................................................................. 29

United States v. Carpio-Leon,


701 F.3d 974 (4th Cir. 2012) .......................................................... 33, 34

United States v. Rene E.,


583 F.3d 8 (1st Cir. 2009) .................................................................... 32

iv
United States v. Vongxay,
594 F.3d 1111 (9th Cir. 2010) .............................................................. 33

United States v. Yancey,


621 F.3d 681 (7th Cir. 2010) ................................................................ 33

Statutes and Regulations

1776 Ma. Laws 479, ch. 21 ...................................................................... 13

1776 Ma. Laws 484 .................................................................................. 19

1777 N.J. Laws 90, ch. 40 § 20 ................................................................ 14

1804 Ind. Acts 108 ................................................................................... 21

1804 Miss. Laws 90 ................................................................................. 21

1806 Md. Laws 44.................................................................................... 21

1851 Ky. Acts 296 .................................................................................... 21

1860–61 N.C. Sess. Laws 68 ................................................................... 21

1863 Del. Laws 332 ................................................................................. 21

1878 N.H. Laws 612, ch. 270 § 2 ............................................................. 21

1878 Vt. Laws 30, ch. 14 § 3 .................................................................... 21

1879 R.I. Laws 110, ch. 806 § 3 ............................................................... 21

1880 Ma. Laws 232, ch. 257 § 4 .............................................................. 21

1880 Oh. Rev. St. 1654, ch. 8 § 6995 ....................................................... 21

1883 Kan. Sess. Laws 159 § 1 ................................................................. 23

1897 Iowa Laws 1981, ch. 5 § 5135 ......................................................... 21

1909 Pa. Laws 466 § 1 ............................................................................. 25

1915 N.D. Laws 225–26, ch. 161 § 67 ..................................................... 25


v
1915 N.J. Laws 662–63, ch. 355 § 1 ........................................................ 25

1917 Minn. Laws 839–40, ch. 500 § 1 ..................................................... 25

1917 N.Y. Laws 1645, ch. 580 § 1 ........................................................... 26

1917 Utah Laws 278................................................................................ 25

1919 Colo. Sess. Laws 416–417 § 1 ......................................................... 26

1919 IL Laws 431 .................................................................................... 26

1921 Mich. Pub. Acts 21 § 1 .................................................................... 26

1921 N.M. Laws 201–02, ch. 113 § 1....................................................... 25

1923 Ca. Laws 696, ch. 339 § 2 ............................................................... 27

1923 Conn. Acts 3732, ch. 259 § 17 ......................................................... 25

1923 N.D. Laws 380, ch. 266 § 5 ............................................................. 27

1923 N.H. Laws 138, ch. 118 § 3 ............................................................. 27

1925 Nev. Laws 54, ch. 47 § 2 ................................................................. 27

1925 W.Va. Acts 31, ch. 3 § 7 .................................................................. 26

1925 Wyo. Sess. Laws 110, ch. 106 § 1 ................................................... 26

1927 R.I. Pub. Laws 256 ......................................................................... 28

1931 Ca. Laws 2316, ch. 1098 § 2 ........................................................... 27

1931 Pa. Laws 497, ch. 158 § 1 ......................................................... 27, 28

1931 Pa. Laws 498, ch. 158 § 4 ............................................................... 27

1933 Or. Laws 488................................................................................... 27

52 Stat. 1250 (1938) ................................................................................ 29

75 Stat. 757 (1961) .................................................................................. 29

vi
William III ch. 5 (1695) ............................................................................. 9

Other Authorities

1 A DIGEST OF THE STATUTE LAW OF THE STATE OF PENNSYLVANIA FROM


THE YEAR 1700 TO 1894 (12th ed. 1894) ................................................ 22

1 ANNOTATED STATUTES OF WISCONSIN, CONTAINING THE GENERAL LAWS


IN FORCE OCTOBER 1, 1889 (1889) ........................................................ 21

1 CALENDAR OF STATE PAPERS, DOMESTIC SERIES, OF THE REIGN OF


CHARLES II, 1660–1661 (1860) ............................................................... 7

1 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789 (1906)............ 13

1 PRIVATE AND SPECIAL STATUTES OF THE COMMONWEALTH OF


MASSACHUSETTS FROM 1780–1805 (1805) ............................................ 20

10 CALENDAR OF STATE PAPERS, DOMESTIC SERIES, 1670 (1895)............... 8

2 GENERAL STATUTES OF THE STATE OF KANSAS (1897) ........................... 23

2 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF LORDS, FROM THE


RESTORATION IN 1660, TO THE PRESENT TIME (1742) .............................. 9

24 THE STATE RECORDS OF NORTH CAROLINA (1905) ............................... 14

27 CALENDAR OF STATE PAPERS, DOMESTIC SERIES, OF THE REIGN OF


CHARLES II, 1684–1685 (1938) ............................................................... 9

4 THE AMERICAN HISTORICAL REVIEW (1899)........................................... 19

6 CALENDAR OF STATE PAPERS: DOMESTIC SERIES, OF THE REIGN OF


WILLIAM III, 1700–1702 (1937) ............................................................ 10

8 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801


(1902) .................................................................................................... 13

9 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801


(1903) .................................................................................................... 13

vii
AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (Noah Webster, 1828)
.............................................................................................................. 16

ANCIENT LAWS AND INSTITUTES OF ENGLAND (Benjamin Thorpe, ed. 1840)


................................................................................................................ 7

BLACK’S LAW DICTIONARY (6th ed. 1990) ................................................. 17

Blackstone, William, 1 COMMENTARIES (St. George Tucker ed., Lawbook


Exchange, Ltd. 1996) (1803) ............................................................ 6, 24

Blackstone, William, 2 COMMENTARIES (Edward Christian ed., 12th ed.


1793–95) ............................................................................................... 25

Breading, Nathaniel, et al., The Address and reasons of dissent of the


minority of the convention, of the state of Pennsylvania, to their
constituents, LIBR. OF CONGRESS (Dec. 12, 1787)................................. 18

Cooley, Thomas M., A TREATISE ON CONSTITUTIONAL


LIMITATIONS (Boston, Little Brown & Co. 1868) ................................. 33

Cornell, Saul & DeDino, Nathan, A Well Regulated Right: The Early
American Origins of Gun Control, 73 FORDHAM L. REV. 487 (2004)
........................................................................................................ 32, 33

Cornell, Saul, “Don't Know Much about History”: The Current Crisis in
Second Amendment Scholarship, 29 N. KY. L REV. 657 (2002)
.................................................................................................. 31, 32, 33

Editorial, BOSTON INDEPENDENT CHRONICLE, Aug. 20, 1789.................. 16

Elliot, Jonathan, 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS


ON THE ADOPTION OF THE FEDERAL CONSTITUTION (2d ed. 1836) ......... 17

Gardiner, Robert, THE COMPLEAT CONSTABLE (3d ed. 1708) .................... 9

Halbrook, Stephen P., THAT EVERY MAN BE ARMED: THE EVOLUTION OF A


CONSTITUTIONAL RIGHT (revised ed. 2013) .......................................... 16

Hening, William Waller, 7 THE STATUTES AT LARGE; BEING A


COLLECTION OF ALL THE LAWS OF VIRGINIA (1820) ............................... 11

viii
Hening, William Waller, 9 THE STATUTES AT LARGE; BEING A
COLLECTION OF ALL THE LAWS OF VIRGINIA (1821) ............................... 14

Johnson, Nicholas, et al., FIREARMS LAW AND THE SECOND AMENDMENT:


REGULATION, RIGHTS AND POLICY (2d ed. 2017) ............................... 6, 24

Kates, Jr., Don B., Handgun Prohibition and the Original Meaning of
the Second Amendment, 82 MICH. L. REV. 204 (1983)................... 19, 30

Kates, Jr., Don B., The Second Amendment: A Dialogue, LAW &
CONTEMP. PROBS., Winter 1986 ............................................... 30, 31, 33

Kopel, David B. & Greenlee, Joseph G.S., The “Sensitive Places”


Doctrine: Locational Limits on the Right to Bear Arms, 13
CHARLESTON L. REV. 203 (2018)............................................................. 7

LAWS AND ORDINANCES OF NEW NETHERLAND, 1638–1674 (1868) .......... 10

Malcolm, Joyce Lee, To Keep and Bear Arms: The Origins of an Anglo–
American Right (1994) ......................................................................... 34

Marshall, Kevin, Why Can’t Martha Stewart Have a Gun?, 32 HARV.


J.L. & PUB. POL'Y 695 (2009) ................................................................ 33

Pickering, Danby, 8 THE STATUTES AT LARGE, FROM THE TWELFTH YEAR


OF KING CHARLES II, TO THE LAST YEAR OF KING JAMES II (1763) ......... 8

Rawle, William, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF


AMERICA (2nd ed. 1829) ................................................................... 6, 25

Reynolds, Glenn Harlan, A Critical Guide to the Second Amendment,


62 TENN. L. REV. 461 (1995)..................................................... 31, 32, 33

Schwartz, Bernard, 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY


(1971) .................................................................................................... 15

Shalhope, Robert E., The Armed Citizen in the Early Republic, 49 LAW
& CONTEMP. PROBS. 125 (1986) ............................................................ 32

Shays’ Rebellion, HISTORY.COM, Aug. 21, 2018 ....................................... 20

ix
Sheridan, Thomas, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE
(2d ed. 1789) ......................................................................................... 16

Story, Joseph, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED


STATES (1833) ......................................................................................... 6

THE ACTS OF THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF


PENNSYLVANIA (1782) ........................................................................... 14

Trenchard, J. & Moyle, W., An Argument Shewing, That a Standing


Army Is Inconsistent with a Free Government, And Absolutely
Destructive to the Constitution of the English Monarchy (1697) ........ 33

Webb, George, THE OFFICE OF AUTHORITY OF A JUSTICE OF PEACE (1736)


.............................................................................................................. 11

Yassky, David, The Second Amendment: Structure, History, and


Constitutional Change, 99 MICH. L. REV. 588 (2000) .................... 31, 33

x
STATEMENT OF AMICI CURIAE

Firearms Policy Coalition, Inc. (“FPC”) is a nonprofit membership

organization that defends constitutional rights—including the right to

keep and bear arms—and promotes individual liberty. FPC engages in

direct and grassroots advocacy, research, legal efforts, outreach, and

education. FPC has a special interest in this case, because the issue

presented is germane to litigation and research in which FPC is currently

engaged.

Firearms Policy Foundation (“FPF”) is a nonprofit organization

that serves its members and the public through charitable programs

including research, education, and legal efforts, with a focus on

constitutional rights. FPF has a special interest in this case, because the

issue presented is germane to litigation and research in which FPF is

currently engaged.

Firearms Owners Against Crime (“FOAC”) is a non-partisan, non-

connected Political Action Committee organized to empower gun owners,

outdoors enthusiasts, and supporters of the right to keep and bear arms

with the information necessary to protect freedom. FOAC has over 1,600

members in Pennsylvania.

1
Madison Society Foundation, Inc. (“MSF”) is a nonprofit

corporation based in California. MSF seeks to promote and preserve the

right to keep and bear arms by offering education and training to the

public.

Second Amendment Foundation (“SAF”) is a nonprofit foundation

dedicated to protecting the right to arms through educational and legal

action programs. SAF has over 650,000 members, in every State of the

Union. SAF organized and prevailed in McDonald v. City of Chicago.

CONSENT TO FILE

All parties have consented to the filing of this brief.1

1 No counsel for a party authored this brief in whole or in part. No


party or counsel contributed money intended to fund the preparation and
submission of this brief. No person other than amici and their members
contributed money intended to fund preparing or submitting this brief.
2
SUMMARY OF ARGUMENT

To succeed in his as-applied challenge, Mr. Hunt-Irving must identify

the traditional justifications for excluding felons from Second

Amendment protections, and then present facts that distinguish his

circumstances from those historically barred.

Both English and American tradition support firearm prohibitions on

dangerous persons—namely, disaffected persons posing a threat to the

government and persons with a proven proclivity for violence. This

tradition of disarming dangerous persons has been practiced for

centuries. It was reflected in the debates and proposed amendments from

the ratifying conventions of Massachusetts, Pennsylvania, and New

Hampshire. And it has been reflected throughout American history.

But there is no tradition of banning peaceable citizens from owning

firearms. Historically, non-violent criminals who posed no danger to the

public and demonstrated no violent propensity—like someone convicted

of tampering with public records with intent to defraud—were not

prohibited from keeping arms. Thus, Mr. Hunt-Irving is distinct from

those who have historically been barred from keeping arms and he should

retain his Second Amendment rights.

3
ARGUMENT

I. For “presumptively lawful” regulations, this Court


determines whether the historical justifications underlying
the statute support a permanent prohibition on the
challenger.

In District of Columbia v. Heller, the Supreme Court identified a series

of “presumptively lawful regulatory measures,” including “longstanding

prohibitions on the possession of firearms by felons.” 554 U.S. 570, 626–

27 & n.26 (2008). The Court repeated these “longstanding regulatory

measures” in McDonald v. City of Chicago, 561 U.S. 742, 786 (2010).

The Heller Court promised that “there will be time enough to expound

upon the historical justifications for the exceptions we have mentioned.”

554 U.S. at 635. See Binderup v. Attorney Gen. United States of Am., 836

F.3d 336, 343 (3d Cir. 2016) (“Heller catalogued a non-exhaustive list of

‘presumptively lawful regulatory measures’ that have historically

constrained the scope of the right.”); United States v. Bena, 664 F.3d

1180, 1183 (8th Cir. 2011) (“the Supreme Court contemplated [] a

historical justification for the presumptively lawful regulations”)

(quoting Heller, 554 U.S. at 627).

Thus, to rebut the presumption and succeed in an as-applied

challenge, “a challenger must prove ... that a presumptively lawful


4
regulation burdens his Second Amendment rights. This requires a

challenger to clear two hurdles: he must (1) identify the traditional

justifications for excluding from Second Amendment protections the class

of which he appears to be a member, and then (2) present facts about

himself and his background that distinguish his circumstances from

those of persons in the historically barred class.” Binderup, 836 F.3d at

346–47 (quoting United States v. Barton, 633 F.3d 168, 173, 174 (3d Cir.

2011)). See Barton, 633 F.3d at 173 (“[T]o evaluate [an] as-applied

challenge, we look to the historical pedigree of 18 U.S.C. § 922(g) to

determine whether the traditional justifications underlying the statute

support a finding of permanent disability in this case.”).

II. The historical justification for firearm prohibitions on


felons is the tradition of disarming dangerous persons,
which Mr. Hunt-Irving is not.

There is no tradition in American history of banning peaceable citizens

from owning firearms. A historical analysis shows that the historical

justification the Heller Court relied on to declare the felon ban

“presumptively lawful” must have been the tradition of disarming

dangerous persons. Here, “Defendant’s prior conviction … was

unquestionably non-violent, and there is no other evidence of violent

5
propensity.” App.30. Thus, Mr. Hunt-Irving is distinct from those who

have historically been barred from keeping arms.

A. In English tradition, arms prohibitions applied to


disaffected and other dangerous persons.

England’s historical tradition cannot be directly applied to an

interpretation of the Second Amendment. “Ultimately, the American

Revolution came because the colonists were no longer English, having

become a new people. Among the exceptional characteristics of this new

people was their hybrid arms culture, the product of meeting and

blending of English and Indian arms cultures.” Nicholas Johnson, et al.,

FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS AND

POLICY 240 (2d ed. 2017).

Americans were contemptuous of the constricted nature of the English

arms right.2 “The arms ethos of the American Revolution and the Early

2 See, e.g., 1 William Blackstone, COMMENTARIES 143-44 n.40 & n.41


(St. George Tucker ed., Lawbook Exchange, Ltd. 1996) (1803) (“Tucker’s
Blackstone”) (denouncing statutory infringements of the English right,
and noting that the American right was broader); William Rawle, A VIEW
OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 126 (2nd ed.
1829) (“In most of the countries of Europe, this right does not seem to be
denied, although it is allowed more or less sparingly”); 3 Joseph Story,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 747 (1833)
(“under various pretences the effect of this provision [in England’s 1689
6
Republic was a conscious repudiation of what Americans saw as an

insufficiently robust right in England. Nevertheless, the English arms

culture of the middle ages was an ancestor of the later American one, and

is therefore relevant to understanding the background of the American

right.” David Kopel & Joseph Greenlee, The “Sensitive Places” Doctrine:

Locational Limits on the Right to Bear Arms, 13 CHARLESTON L. REV. 203,

208 (2018).

The English tradition of preventing dangerous persons from accessing

weapons dates back to at least the year 602, when The Laws of King

Aethelbirht made it unlawful to “furnish weapons to another where there

is strife…” ANCIENT LAWS AND INSTITUTES OF ENGLAND 3 (Benjamin

Thorpe, ed. 1840).

A millennium later, the practice became more prevalent. In 1660, Lord

Lieutenants were issued instructions for “disaffected persons [to be]

watched and not allowed to assemble, and their arms seized.” 1

CALENDAR OF STATE PAPERS, DOMESTIC SERIES, OF THE REIGN OF CHARLES

II, 1660–1661, at 150 (1860). Additionally, Charles II ordered the Lord

Declaration of Rights] has been greatly narrowed; and it is at present in


England more nominal than real, as a defensive privilege.”).
7
Mayor and Commissioners for the Lieutenancy of London “to make strict

search in the city and precincts for dangerous and disaffected persons,

seize and secure them and their arms, and detain them in custody.” 10

CALENDAR OF STATE PAPERS, DOMESTIC SERIES, 1670, at 237 (1895).

England’s 1662 Militia Act empowered officials “to search for and seize

all arms in the custody or possession of any person or persons whom the

said lieutenants or any two or more of their deputies shall judge

dangerous to the peace of the kingdom.” 8 Danby Pickering, THE

STATUTES AT LARGE, FROM THE TWELFTH YEAR OF KING CHARLES II, TO THE

LAST YEAR OF KING JAMES II 40 (1763).

That same year, Charles II ordered Sir Thomas Peyton and two other

deputy lieutenants of Kent “to seize all arms found in the custody of

disaffected persons in the lathe of Shepway, and disarm all factious and

seditious spirits.” 1 CALENDAR OF STATE PAPERS, DOMESTIC SERIES, OF THE

REIGN OF CHARLES II at 538.

Charles II then issued orders to eighteen lieutenants in 1684 to seize

arms “from dangerous and disaffected persons.” 27 CALENDAR OF STATE

8
PAPERS, DOMESTIC SERIES, OF THE REIGN OF CHARLES II, 1684–1685, at

26–27, 83–85, 102 (1938).3

A 1695 statute forbade the carrying and possession of arms and

ammunition by Irish Catholics in Ireland. 7 William III ch. 5 (1695). In

addition to distrusted “papists,” a legal manual instructed constables to

search for arms possessed by persons who are “dangerous.” Robert

Gardiner, THE COMPLEAT CONSTABLE 18 (3d ed. 1708).

Like his predecessor, William III called in 1699 for the disarming of

“great numbers of papists and other disaffected persons, who disown his

Majesty’s government.” 5 CALENDAR OF STATE PAPERS, DOMESTIC SERIES,

OF THE REIGN OF WILLIAM III, 1699–1700, at 79–80 (1937).

The following year, The House of Lords prayed that William III “would

be pleased to order the seizing of all Horses and Arms of Papists, and

other disaffected Persons, and have those ill Men removed from London

according to Law.” 2 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF

LORDS, FROM THE RESTORATION IN 1660, TO THE PRESENT TIME 20 (1742).

3 “Disaffected persons” were those not loyal to the current government,


who might want to overthrow it. Until the Glorious Revolution of 1688,
this included Whigs and non-Anglican Protestants. When roles were
reversed after the Glorious Revolution, “disaffected persons” included
Tories loyal to James II.
9
In response, William III “assured them he would take Care to perform all

that they had desired of him.” Id.

Then in 1701, King William III “charge[d] all lieutenants and deputy-

lieutenants, within the several counties of [England] and Wales, that

they cause search to be made for arms in the possession of any persons

whom they judge dangerous.” 6 CALENDAR OF STATE PAPERS: DOMESTIC

SERIES, OF THE REIGN OF WILLIAM III, 1700–1702, at 234 (1937) (second

brackets in original).

As demonstrated, disarmament actions in English tradition focused

on dangerous persons—violent persons and disaffected persons perceived

as threatening to the crown.

B. In colonial America, arms prohibitions applied to


disaffected and other dangerous persons.

Similar to England, disarmament laws in colonial America were

designed to keep weapons away from those perceived as posing a

dangerous threat. Such laws were often discriminatory and overbroad—

and thus unconstitutional—but even those were intended to prevent

danger. See, e.g., LAWS AND ORDINANCES OF NEW NETHERLAND, 1638–

1674, at 234–35 (1868) (1656 New York law “forbid[ing] the admission of

10
any Indians with a gun ... into any Houses” “to prevent such dangers of

isolated murders and assassinations”).

Inspired by England’s Statute of Northampton, some American laws

forbade carrying arms in an aggressive and terrifying manner. A 1736

Virginia legal manual allowed for confiscation of arms, providing that a

constable “may take away Arms from such who ride, or go, offensively

armed, in Terror of the People” and may bring the person and their arms

before a Justice of the Peace. George Webb, THE OFFICE OF AUTHORITY OF

A JUSTICE OF PEACE 92–93 (1736).

Additionally, determining that “it is dangerous at this time to permit

Papists to be armed,” Virginia in 1756 authorized the seizure from those

unwilling to take an oath of allegiance of “any arms, weapons, gunpowder

or ammunition.” 7 William Waller Hening, THE STATUTES AT LARGE;

BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA 35–37 (1820). An

exception was made, however, for “such necessary weapons as shall be

allowed to him, by order of the justices of the peace at their court, for the

defence of his house or person.” Id. at 36.

11
Approaching the Revolutionary War, disaffected colonists became a

greater concern as dangerous persons who should be disarmed—due to

their likelihood of partaking in or supporting insurrections.

Connecticut punished disaffected colonists in 1775. While persons who

actively assisted the British were imprisoned and forfeited their entire

estate, persons who libeled or defamed acts of Congress were

disfranchised and prohibited from keeping arms, holding office, or

serving in the military. 4 THE AMERICAN HISTORICAL REVIEW 282 (1899).

“Early in the ensuing year (January 2, 1776) Congress again

recommended ‘the most speedy and effectual measures to frustrate the

mischievous machinations and restrain the wicked practices of these

men;’ that ‘they ought to be disarmed, the dangerous kept in safe custody,

or bound with sureties for good behavior.’” Id. at 283. The Connecticut

Courant on May 20, 1776, complained of “[a] gang of Tories,” and

exclaimed that “[i]f these internal enemies are suffered to proceed in their

hellish schemes, our ruin is certain.” Id. Soon after, such Tories were

“convicted of high treason, and sentenced to death,” rather than merely

disarmed or imprisoned. Id. at 284.

12
In 1776, in response to General Arthur Lee’s plea for emergency

military measures, the Continental Congress recommended that colonies

disarm persons “who are notoriously disaffected to the cause of America,

or who have not associated, and shall refuse to associate, to defend, by

arms, these United Colonies.” 1 JOURNALS OF THE CONTINENTAL

CONGRESS, 1774–1789, at 285 (1906).

Massachusetts acted within months “to cause all persons to be

disarmed within their respective colonies who are notoriously disaffected

to the cause of America, or who have not associated, and refuse to

associate, to defend by arms these United Colonies against the hostile

attempts of the British fleets and armies; and to apply the arms taken

from such persons, in each respective colony, in the first place, to the

arming of the continental troops raised in said colony.” 1776 Ma. Laws

479, ch. 21. Pennsylvania enacted similar laws in April 1776 and June

1777. 8 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801, at

559–60 (1902); 9 id. at 110–14.

In 1777, New Jersey empowered its Council of Safety “to deprive and

take from such Persons as they shall judge disaffected and dangerous to

13
the present Government, all the Arms, Accoutrements, and Ammunition

which they own or possess.” 1777 N.J. Laws 90, ch. 40 § 20.

That same year, North Carolina went further, essentially stripping

“all Persons failing or refusing to take the Oath of Allegiance” of any

citizenship rights. Those “permitted ... to remain in the State” could “not

keep Guns or other Arms within his or their house.” 24 THE STATE

RECORDS OF NORTH CAROLINA 89 (1905). In May 1777, Virginia did the

same. 9 William Waller Hening, THE STATUTES AT LARGE; BEING A

COLLECTION OF ALL THE LAWS OF VIRGINIA 282 (1821).

In 1779, Pennsylvania, declaring that “it is very improper and

dangerous that persons disaffected to the liberty and independence of

this state shall possess or have in their own keeping, or elsewhere, any

firearms,” “empowered [militia officers] to disarm any person or persons

who shall not have taken any oath or affirmation of allegiance to this or

any other state.” THE ACTS OF THE GENERAL ASSEMBLY OF THE

COMMONWEALTH OF PENNSYLVANIA 193 (1782).

Like the English, and out of similar concerns of violent insurrections,

the colonists disarmed those who might rebel against them. “[T]hese

revolutionary and founding-era gun regulations ... targeted particular

14
groups for public safety reasons.” Nat'l Rifle Ass'n of Am., Inc. v. Bureau

of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 200 (5th Cir.

2012). “Although these Loyalists were neither criminals nor traitors,

American legislators had determined that permitting these persons to

keep and bear arms posed a potential danger.” Id.

C. Influential proposals at ratifying conventions called for


disarming dangerous persons while protecting the right
of all peaceable persons.

“Constitutional rights are enshrined with the scope they were

understood to have when the people adopted them.” Heller, 554 U.S. at

634–35. Heller thus concluded with “our adoption of the original

understanding of the Second Amendment.” Id. at 625. The ratifying

conventions are therefore instructive in interpreting the right that was

ultimately codified.

Samuel Adams opposed ratification without a declaration of rights.

Adams proposed at Massachusetts’s convention an amendment

guaranteeing that “the said constitution be never construed ... to prevent

the people of the United States who are peaceable citizens, from keeping

their own arms.” 2 Bernard Schwartz, THE BILL OF RIGHTS: A

DOCUMENTARY HISTORY 675 (1971). Adams’s proposal was celebrated by

15
his supporters as ultimately becoming the Second Amendment. See

Editorial, BOSTON INDEPENDENT CHRONICLE, Aug. 20, 1789, at 2, col. 2

(calling for the paper to republish Adams’s proposed amendments

alongside Madison’s proposed Bill of Rights, “in order that they may be

compared together,” to show that “every one of [Adams’s] intended

alterations but one [i.e., proscription of standing armies]” were adopted,

“[i]n justice therefore for that long tried Republican.”); Stephen Halbrook,

THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT

86 (revised ed. 2013) (“[T]he Second Amendment ... originated in part

from Samuel Adams’s proposal ... that Congress could not disarm any

peaceable citizens.”).

“Peaceable” did not necessarily mean law-abiding. A contemporary

dictionary defined “peaceable” as “Free from war, free from tumult; quiet,

undisturbed; not quarrelsome, not turbulent.” Thomas Sheridan, A

COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (2d ed. 1789). Noah

Webster defined “peaceable” as “Not violent, bloody or unnatural.”

AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (Noah Webster, 1828).4

Notably, the Heller Court relied on both Sheridan’s and Webster’s

4 http://webstersdictionary1828.com/Dictionary/peaceable.
16
definitions in defining the Second Amendment’s text. For Sheridan, see

Heller, 554 U.S. at 584 (defining “bear”). For Webster, see id. at 581

(“arms”), 582 (“keep”), 584 (“bear”), 595 (“militia”). See also BLACK’S LAW

DICTIONARY 1130 (6th ed. 1990) (defining “peaceable” as “Free from the

character of force, violence, or trespass.”).

New Hampshire proposed a bill of rights that allowed the

disarmament of only violent insurgents: “Congress shall never disarm

any citizen, unless such as are or have been in actual rebellion.” 1

Jonathan Elliot, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON

THE ADOPTION OF THE FEDERAL CONSTITUTION 326 (2d ed. 1836).

After Pennsylvania’s ratifying convention, the Anti-Federalist

minority—which opposed ratification without a declaration of rights—

proposed the following right to bear arms:

That the people have a right to bear arms for the


defence of themselves and their own state, or the
United States, or for the purpose of killing game,
and no law shall be passed for disarming the
people or any of them, unless for crimes
committed, or real danger of public injury from
individuals.

Nathaniel Breading et al., The Address and reasons of dissent of the

minority of the convention, of the state of Pennsylvania, to their

17
constituents, LIBR. OF CONGRESS (Dec. 12, 1787).5 While the language did

not expressly limit “crimes committed” to violent crimes, every arms

prohibition to that point had been based—justified or not—on perceived

dangerousness. And the non-criminal basis—“real danger of public

injury”—was also based on violence. There is no indication that the Anti-

Federalists hoped to expand arms prohibitions for the first time beyond

dangerousness.

“[T]he ‘debates from the Pennsylvania, Massachusetts and New

Hampshire ratifying conventions, which were considered ‘highly

influential’ by the Supreme Court in Heller ... confirm that the common

law right to keep and bear arms did not extend to those who were likely

to commit violent offenses.’” Binderup, 836 F.3d at 368 (Hardiman, J.,

concurring in part and concurring in the judgments) (quoting Barton, 633

F.3d at 174) (brackets omitted). “Hence, the best evidence we have

indicates that the right to keep and bear arms was understood to exclude

those who presented a danger to the public.” Id.

5 https://www.loc.gov/resource/bdsdcc.c0401/?sp=1.
18
D. Prohibited persons could have their arms rights restored
in the founding era.

Persons who would have been prohibited from keeping arms in the

founding era were often punished by death. And “[w]e may presume that

persons confined in gaols awaiting trial on criminal charges were also

debarred from the possession of arms.” Don Kates, Handgun Prohibition

and the Original Meaning of the Second Amendment, 82 MICH. L. REV.

204, 266 (1983).

There were some examples, however, of prohibited persons having

their right to keep and bear arms restored. Connecticut’s 1775 law

disarmed “inimical” persons only “until such time as he could prove his

friendliness to the liberal cause.” 4 THE AMERICAN HISTORICAL REVIEW

282 (1899). Massachusetts’s 1776 law disarming disaffected persons

provided that “persons who may have been heretofore disarmed by any

of the committees of correspondence, inspection or safety” may “receive

their arms again ... by the order of such committee or the general court.”

1776 Ma. Laws 484. Once the perceived danger abated, the arms

disability was lifted.

Another instructive example came from Shays’s Rebellion, “a series of

violent attacks on courthouses and other government properties in


19
Massachusetts, beginning in 1786, which led to a full-blown military

confrontation in 1787.” Shays’ Rebellion, HISTORY.COM, Aug. 21, 2018.6

As the rebellion ceased in 1787, Massachusetts established “the

disqualifications to which persons shall be subjected, who have been, or

may be guilty of treason, or giving aid or support to the present rebellion,

and to whom a pardon may be extended.” 1 PRIVATE AND SPECIAL

STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS FROM 1780–1805,

at 145 (1805). Among these disqualifications were the temporary

forfeiture of many civil rights, including a three-year prohibition on

bearing arms. Id. at 146–47.

By comparison to the treasonous rebels who took up arms to overthrow

the government and had their arms rights restored after three years, Mr.

Hunt-Irving never committed or threatened violence against anyone.

E. Nineteenth-century bans applied to slaves and freedmen,


while lesser restrictions focused on disaffected and
dangerous persons.

The Heller Court looked to nineteenth-century experiences only for

help “understanding [] the origins and continuing significance of the

Amendment.” 554 U.S. at 614.

6 https://www.history.com/topics/early-us/shays-rebellion.
20
Nineteenth-century prohibitions on arms possession were mostly

discriminatory bans on slaves7 and freedmen.8 Another targeted group

starting in the latter half of the century were “tramps”—typically defined

as males begging for charity outside their home county, meaning the

restrictions did not apply within the home.

New Hampshire, in 1878, imprisoned any tramp who “shall enter any

dwelling-house ... without the consent of the owner ... or shall be found

carrying any fire-arm or other dangerous weapon, or shall threaten to do

any injury to any person, or to the real or personal estate of another . . .”

1878 N.H. Laws 612, ch. 270 § 2.

Vermont enacted a similar law that year, 1878 Vt. Laws 30, ch. 14 § 3,

followed by Rhode Island, 1879 R.I. Laws 110, ch. 806 § 3, Ohio, 1880 Oh.

Rev. St. 1654, ch. 8 § 6995, Massachusetts, 1880 Ma. Laws 232, ch. 257 §

4, Wisconsin, 1 ANNOTATED STATUTES OF WISCONSIN, CONTAINING THE

GENERAL LAWS IN FORCE OCTOBER 1, 1889, at 940 (1889), and Iowa, 1897

Iowa Laws 1981, ch. 5 § 5135.

7 See, e.g., 1804 Miss. Laws 90; 1804 Ind. Acts 108; 1806 Md. Laws 44.
8 See, e.g., 1851 Ky. Acts 296; 1860–61 N.C. Sess. Laws 68; 1863 Del.

Laws 332.
21
Pennsylvania’s 1879 law was narrower, prohibiting tramps from

carrying a weapon “with intent unlawfully to do injury or intimidate any

other person.” 1 A DIGEST OF THE STATUTE LAW OF THE STATE OF

PENNSYLVANIA FROM THE YEAR 1700 TO 1894, at 541 (12th ed. 1894). This

reflects the fact that all these laws were enacted for the purpose of

promoting public safety by disarming dangerous persons.

Ohio’s Supreme Court recognized this purpose, opining that Ohio’s

version of the law was constitutional because it applied to “vicious

persons”:

The constitutional right to bear arms is intended


to guaranty to the people, in support of just
government, such right, and to afford the citizen
means for defense of self and property. While this
secures to him a right of which he cannot be
deprived, it enjoins a duty in execution of which
that right is to be exercised. If he employs those
arms which he ought to wield for the safety and
protection of his country, his person, and his
property, to the annoyance and terror and danger
of its citizens, his acts find no vindication in the bill
of rights. That guaranty was never intended as a
warrant for vicious persons to carry weapons with
which to terrorize others.

State v. Hogan, 63 Ohio St. 202, 218–19 (1900) (emphasis added).

Two Kansas restrictions are also relevant. In 1868, Kansas prohibited

from bearing—but not keeping—“any pistol, bowie-knife, dirk, or other


22
deadly weapon,” “[a]ny person who is not engaged in any legitimate

business, any person under the influence of intoxicating drink, and any

person who has ever borne arms against the government of the United

States.” 2 GENERAL STATUTES OF THE STATE OF KANSAS 353 (1897).

Fifteen years later, Kansas prohibited the transfer of “any pistol,

revolver or toy pistol ... or any dirk, bowie-knife, brass knuckles, slung

shot, or other dangerous weapons ... to any person of notoriously unsound

mind.” 1883 Kan. Sess. Laws 159 § 1.

The Kansas Supreme Court held that “other deadly weapons” did not

include long guns. Parman v. Lemmon, 244 P. 232 (Kan. 1926).9 Thus,

Kansas’s laws did not prohibit anyone from keeping any arms, nor did

they apply to long guns, making the laws far less burdensome than 18

U.S.C. § 922(g)(1).

9 After initially holding that shotguns (and therefore all firearms) were
included based on the rule of ejusdem generis, Parman v. Lemmon, 244
P. 227 (Kan. 1925), the court reversed itself on rehearing, Parman, 244
P. 232.
23
F. Most early twentieth-century bans applied to non-
citizens, who were blamed for rising crime and social
unrest.

Since the Heller Court found limited historical value in nineteenth-

century sources, it is particularly dubious to rely on twentieth-century

sources. 554 U.S. at 614 (“Since those [post-Civil War] discussions took

place 75 years after the ratification of the Second Amendment, they do

not provide as much insight into its original meaning as earlier

sources.”). Nevertheless, it is telling that disarmament practices

continued to focus on potentially violent persons in the twentieth

century. And it is especially telling that no previous law was as

burdensome as 18 U.S.C. § 922(g)(1).

In the early twentieth century, as immigration increased and

immigrants were blamed for surges in crime and social unrest, several

states enacted firearms restrictions on non-citizens. Johnson, et al., at

501.

Some states prohibited non-citizens from possessing arms under the

guise of preserving game.10 Pennsylvania, for the stated purpose of giving

10 England had similarly used game laws to disarm segments of the


population. See 1 Tucker’s Blackstone, at App. 300 (“In England, the
people have been disarmed, generally, under the specious pretext of
24
“additional protection to wild birds and animals and game,” made it

“unlawful for any unnaturalized foreign born resident, within this

commonwealth, to either own or be possessed of a shotgun or rifle of any

make.” 1909 Pa. Laws 466 § 1. North Dakota and New Jersey enacted

similar laws, 1915 N.D. Laws 225–26, ch. 161 § 67; 1915 N.J. Laws 662–

63, ch. 355 § 1, followed by New Mexico. 1921 N.M. Laws 201–02, ch. 113

§ 1.

Connecticut—without the pretense of protecting game—forbade any

“alien resident of the United States” to “own or be possessed of any shot

gun or rifle.” 1923 Conn. Acts 3732, ch. 259 § 17. Notably, all these laws

allowed handgun ownership.

Other states went further and prohibited ownership of all firearms.

Utah forbade “any unnaturalized foreign born person ... to own or have

in his possession, or under his control, a shot gun, rifle, pistol, or any fire

arm of any make.” 1917 Utah Laws 278. Minnesota passed a similar law

that same year, 1917 Minn. Laws 839–40, ch. 500 § 1, followed by

preserving the game”); Rawle, at 121–23 (“An arbitrary code for the
preservation of game in that country has long disgraced them.”). But see
2 William Blackstone, COMMENTARIES 412 n.2 (Edward Christian ed.,
12th ed. 1793–95) (“everyone is at liberty to keep or carry a gun, if he
does not use it for the destruction of game.”).
25
Colorado and Michigan. 1919 Colo. Sess. Laws 416–417 § 1; 1921 Mich.

Pub. Acts 21 § 1. In 1925, both Wyoming and West Virginia prohibited

anyone who was not a United States citizen from owning any firearm.

1925 Wyo. Sess. Laws 110, ch. 106 § 1; 1925 W.Va. Acts 31, ch. 3 § 7.

G. Early twentieth-century prohibitions on Americans


applied to only violent criminals—the few laws that
applied to non-violent criminals did not restrict long gun
ownership.

In establishing a concealed carry permitting system in 1919, Illinois

provided that the “[c]onviction of a licensee for a felony shall operate as

a revocation of any such license.” 1919 IL Laws 431 § 4. The law

elaborated: “Whoever, after having been convicted of murder,

manslaughter, burglary, rape, mayhem, assault with a deadly weapon,

or assault with intent to commit a felony, shall violate section 4 of this

Act...” Id. § 7.

New York had made it especially difficult for “any alien” to acquire a

concealed carry license, and also made “[t]he conviction of a licensee of a

felony in any part of the state [] operate as a revocation of the license.”

1917 N.Y. Laws 1645, ch. 580 § 1. Neither the Illinois nor New York law

prohibited any alien or felon from possessing any firearm.

26
New Hampshire passed a law in 1923 providing that, “No

unnaturalized foreign-born person and no person who has been convicted

of a felony against the person or property of another shall own or have in

his possession or under his control a pistol or revolver ... ” 1923 N.H. Laws

138, ch. 118 § 3. North Dakota and California passed similar laws that

same year, 1923 N.D. Laws 380, ch. 266 § 5; 1923 Ca. Laws 696, ch. 339

§ 2, as did Nevada in 1925. 1925 Nev. Laws 54, ch. 47 § 2. California

amended its law in 1931 to include persons “addicted to the use of any

narcotic drug.” 1931 Ca. Laws 2316, ch. 1098 § 2. Then in 1933, Oregon

passed a version of the law that also prohibited machine guns. 1933 Or.

Laws 488. Notably, none of these laws applied to rifles or shotguns.

Pennsylvania’s 1931 law applied to handguns and some long guns. It

provided that, “No person who has been convicted in this Commonwealth

or elsewhere of a crime of violence shall own a firearm, or have one in his

possession or under his control.” 1931 Pa. Laws 498, ch. 158 § 4. It defined

“firearm” as “any pistol or revolver with a barrel less than twelve inches,

any shotgun with a barrel less than twenty-four inches, or any rifle with

a barrel less than fifteen inches.” 1931 Pa. Laws 497, ch. 158 § 1. “Crime

of violence” was defined as “murder, rape, mayhem, aggravated assault

27
and battery, assault with intent to kill, robbery, burglary, breaking and

entering with intent to commit a felony, and kidnapping.” Id.

The only law that applied to citizens and prohibited the keeping of all

firearms was from Rhode Island in 1927. Importantly, it applied to only

violent criminals. The law provided that, “No person who has been

convicted in this state or elsewhere of a crime of violence shall purchase

own, carry or have in his possession or under his control any firearm.”

1927 R.I. Pub. Laws 257 § 3. “Crime of violence” was defined as “any of

the following crimes or any attempt to commit any of the same, viz.:

murder, manslaughter, rape, mayhem, assault or battery involving grave

bodily injury, robbery, burglary, and breaking and entering.” 1927 R.I.

Pub. Laws 256 § 1.

18 U.S.C. § 922(g)(1) itself was originally intended to keep firearms

out of the hands of violent persons. “Indeed, the current federal felony

firearm ban differs considerably from the version of the proscription in

force just half a century ago. Enacted in its earliest incarnation as the

Federal Firearms Act of 1938, the law initially covered those convicted of

a limited set of violent crimes such as murder, rape, kidnapping, and

burglary, but extended to both felons and misdemeanants convicted of

28
qualifying offenses.” United States v. Booker, 644 F.3d 12, 24 (1st Cir.

2011) (citing Federal Firearms Act, ch. 850, §§ 1(6), 2(f), 52 Stat. 1250,

1250–51 (1938)). “The law was expanded to encompass all individuals

convicted of a felony (and to omit misdemeanants from its scope) several

decades later, in 1961.” Id. (citing An Act to Strengthen the Federal

Firearms Act, Pub.L. No. 87–342, § 2, 75 Stat. 757, 757 (1961)).

H. The historical tradition of disarming dangerous persons


provides no justification for disarming Mr. Hunt-Irving.

The Heller Court promised a “historical justification” for bans on

felons. 554 U.S. at 635. Indeed, there may be such a justification for

violent felons. Violent and potentially violent persons have historically

been banned from keeping arms in several contexts—specifically, persons

guilty of committing violent crimes, persons expected to take up arms

against the government, persons with violent tendencies, distrusted

groups of people, and those of presently unsound mind. While many of

these bans have been unjust and discriminatory, the purpose was always

the same: to disarm those who posed a danger. Binderup, 836 F.3d at 357

(“The most cogent principle that can be drawn from traditional

limitations on the right to keep and bear arms is that dangerous persons

likely to use firearms for illicit purposes were not understood to be


29
protected by the Second Amendment.”) (Hardiman, J., concurring in part

and concurring in the judgments).

There is no historical justification for completely and forever depriving

a peaceable citizen like Mr. Hunt-Irving of his right to keep and bear

arms.

III. There is no historical justification for disarming


“unvirtuous” citizens.

Some scholars and courts have embraced a theory that the Second

Amendment protected only “virtuous” citizens in the founding era. The

sources Judge Ambro cited in his Binderup opinion demonstrate how this

theory developed despite lacking historical foundation.

• Don Kates, Handgun Prohibition and the Original Meaning of

the Second Amendment, 82 MICH. L. REV. 204, 266 (1983). For

support that “[f]elons simply did not fall within the benefits of

the common law right to possess arms,” Kates cited the ratifying

convention proposals discussed above.

• Don Kates, The Second Amendment: A Dialogue, LAW &

CONTEMP. PROBS., Winter 1986, at 143, 146. For support that

“the right to arms does not preclude laws disarming the

30
unvirtuous citizens (i.e., criminals),” id. at 146, Kates cited his

previous article.

• Glenn Reynolds, A Critical Guide to the Second Amendment, 62

TENN. L. REV. 461, 480 (1995). For support that “felons, children,

and the insane were excluded from the right to arms,” Reynolds

quoted Kates’s Dialogue article.

• Saul Cornell, “Don't Know Much about History”: The Current

Crisis in Second Amendment Scholarship, 29 N. KY. L REV. 657,

679 (2002). For support that the “right was not something that

all persons could claim, but was limited to those members of the

polity who were deemed capable of exercising it in a virtuous

manner,” Cornell cited a Pennsylvania prohibition on disaffected

persons.

• David Yassky, The Second Amendment: Structure, History, and

Constitutional Change, 99 MICH. L. REV. 588, 626–27 (2000).

Yassky contended that “[t]he average citizen whom the Founders

wished to see armed was a man of republican virtue,” id. at 626,

but provided no example of the right being limited to such men.

31
• Saul Cornell & Nathan DeDino, A Well Regulated Right: The

Early American Origins of Gun Control, 73 FORDHAM L. REV.

487, 491–92 (2004). The authors said, “the Second Amendment

was strongly connected to … the notion of civic virtue,” id. at 492,

but did not show that unvirtuous citizens were excluded from the

right.

• United States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009). In

addition to Reynolds, Cornell, and the Dissent of the Minority of

Pennsylvania, the court cited Robert Shalhope, The Armed

Citizen in the Early Republic, 49 LAW & CONTEMP. PROBS. 125,

130 (1986), providing a quote to show that in “the view of late-

seventeenth century republicanism ... ‘[t]he right to arms was to

be limited to virtuous citizens only. Arms were ‘never lodg'd in

the hand of any who had not an Interest in preserving the

publick Peace.’” This quote—referring to dangerous persons—

was about the ancient “Israelites, Athenians, Corinthians,

Achaians, Lacedemonians, Thebans, Samnites, and Romans.” J.

Trenchard & W. Moyle, An Argument Shewing, That a Standing

32
Army Is Inconsistent with a Free Government, And Absolutely

Destructive to the Constitution of the English Monarchy 7 (1697).

• United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010).

The Vongxay court cited Kates’s Dialogue and Reynolds.

• United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010).

Yancey cited Vongxay, Reynolds, and Kates, then Thomas Cooley

“explaining that constitutions protect rights for ‘the People’

excluding, among others, ‘the idiot, the lunatic, and the felon.’”

Id. at 685 (citing Thomas Cooley, A TREATISE ON CONSTITUTIONAL

LIMITATIONS 29 (1868)). “The … discussion in Cooley, however,

concerns classes excluded from voting. These included women

and the property‐less—both being citizens and protected by arms

rights.” Kevin Marshall, Why Can’t Martha Stewart Have a

Gun?, 32 HARV. J.L. & PUB. POL'Y 695, 709–10 (2009).

• United States v. Bena, 664 F.3d 1180, 1183 (8th Cir. 2011). The

Bena court cited Kates’s Dialogue article.

• United States v. Carpio-Leon, 701 F.3d 974, 979–80 (4th Cir.

2012). Carpio-Leon cited Yancey, Vongxay, Reynolds, Kates,

Yassky, Cornell, Cornell and DeDino, the ratifying conventions,

33
and noted the English tradition of “disarm[ing] those ...

considered disloyal or dangerous.” Id. The court also cited Joyce

Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo–

American Right 140–41 (1994), discussing how “Indians and

black slaves ... were barred from owning firearms.” Id. at 140.

Discriminatory bans on non-citizens, however, say little about

“unvirtuous citizens.”

None of these sources provided any founding-era law disarming

“unvirtuous” citizens—or anyone, for that matter, who was not perceived

as dangerous. Contrasted with the myriad of laws disarming dangerous

persons, it must be that the “historical justification” for a ban on felons

is the tradition of disarming dangerous—not merely unvirtuous—

persons.

CONCLUSION

The decision below should be reversed, and the ban should be held

unconstitutional as applied to Mr. Hunt-Irving.

Respectfully submitted,

/s/ Joseph G.S. Greenlee


Joseph G.S. Greenlee
Counsel of Record
Firearms Policy Coalition
34
1215 K Street, 17th Floor
Sacramento, CA 95814
(916) 378-5785
jgr@fpchq.org

35
CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation of

Fed. R. App. P. 29(a)(5) because this brief contains 6,492 words, excluding

the parts of the brief excluded by Fed. R. App. P. 32(f).

I certify that this brief complies with the typeface requirements of Fed.

R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P.

32(a)(6) because this brief has been prepared in 14-point, proportionately

spaced Century Schoolbook font.

I certify that the text of the electronic brief and the hard copies of the

brief are identical.

I certify that the PDF was scanned with Windows Defender Antivirus

version 1.295.1532.0, and according to the program, the document is

virus free.

I certify that I am admitted to practice in the Third Circuit Court of

Appeals, and that I am a member in good standing.

Dated this 10th day of July 2019.

/s/ Joseph G.S. Greenlee


Joseph G.S. Greenlee
Counsel for Amici Curiae

36
CERTIFICATE OF SERVICE

I hereby certify that on July 10, 2019, I served the foregoing brief via

the CM/ECF system for the United States Court of Appeals for the Third

Circuit, which will distribute the brief to all attorneys of record in this

case. No privacy redactions were necessary.

Dated this 10th day of July 2019.

/s/ Joseph G.S. Greenlee


Joseph G.S. Greenlee
Counsel for Amici Curiae

37